Opinion
No. 59972-1-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-17128-4, John P. Erlick, J., entered May 1, 2007.
Affirmed by unpublished per curiam opinion.
Fifteen years after a workplace injury that has spawned numerous administrative and judicial rulings, Rosa Sarausad appeals a superior court order affirming the closure of her worker's compensation claim and the denial of most of her claims for additional relief. Because the record is inadequate to review several of Sarausad's claims, and because her other contentions lack merit, we affirm.
FACTS
In 1993, Rosa Sarausad sustained a neck and back injury while performing her job at the University of Washington. In 1995, the Department of Labor and Industries (Department) allowed her claim for worker's compensation benefits based on a temporary aggravation of a pre-existing back condition. The Department closed the claim with treatment to date and without an award for time loss compensation or permanent partial disability. Sarausad appealed, and in 1997 the Board of Industrial Insurance Appeals (Board) remanded the matter with directions to accept Sarausad's claim for aggravation of a pre-existing psychiatric condition and to take further action.
On August 6, 1998, the Department issued an order calculating Sarausad's time loss compensation rate. The calculation did not include a value for her employer-provided health insurance. Sarausad did not appeal this order.
In July and August 1999, the Department issued a series of orders denying Sarausad time loss compensation from June 16, 1993 through December 31, 1997, and from June 23, 1999 through August 19, 1999. The Department also closed her claim effective August 19, 1999 with no award for permanent partial disability.
Following an unsuccessful appeal to the Board, Sarausad appealed to the superior court. On April 8, 2002, the court ordered the Department to pay all the time loss compensation it had previously denied, to accept that Sarausad's psychiatric condition was proximately related to her industrial injury, and to keep her claim open for additional treatment and other benefits. The order did not address how the Department was to calculate Sarausad's monthly time loss payments and did not mention interest or whether her benefit calculation should include a value for her health insurance. Accordingly, the Department did not address those matters on remand.
In October 2003, the Department determined that Sarausad was not entitled to vocational rehabilitation. This determination was later upheld by the Board and Sarausad sought review in superior court. In January 2006, the superior court affirmed the Board's decision. Sarausad did not appeal.
Between 2004 and 2005, the Department issued a series of orders that are the principal subjects of this appeal. Those orders ended her time loss compensation as of August 26, 2003, and closed her claim effective May 11, 2004 with no award for permanent partial or permanent total disability. Sarausad appealed those orders to the Board.
On April 24, 2006, the Board issued a lengthy and extremely thorough decision addressing Sarausad's numerous claims. It rejected her claims for further time loss compensation, treatment, and vocational services and dismissed a number of other claims for lack of jurisdiction. It concluded that she was not entitled to permanent partial or permanent total disability awards and that the August 1998 calculation of her wages and compensation rate was res judicata. The Board did, however, order adjustments to prior awards for minor errors in the Department's time loss compensation calculations.
On March 28, 2007, the superior court affirmed the Board and adopted its findings and conclusions. The court expressly awarded interest, but only for small, additional amounts of time loss compensation that the Board had awarded in its decision. Sarausad appeals.
DECISION
In industrial insurance cases, the superior court conducts a de novo review of the Board's decision, relying exclusively on the certified board record.
RCW 51.52.115; Gallo v. Dep't of Labor Indus., 119 Wn. App. 49, 53, 81 P.3d 869 (2003), aff'd, 155 Wn.2d 470, 120 P.3d 564 (2005).
The Board's findings and decision are prima facie correct and the worker challenging the decision has the burden of proof. We review the superior court's decision under the ordinary standard of review for civil cases, i.e., whether substantial evidence supports the trial court's factual findings and whether the trial court's conclusions of law flow from the findings. "Statutory construction is a question of law, which we review de novo."
Gallo, 119 Wn. App. at 53-54.
RCW 51.52.140; Ruse v. Dep't of Labor Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).
Labor Indus. v. Granger, 130 Wn. App. 489, 493, 123 P.3d 858 (2005).
We note initially that Sarausad has not provided this court with an adequate record to review several of her claims. The party seeking review has the burden of providing all portions of the record necessary for review of the issues raised on appeal. An insufficient record precludes review of the assigned error and any challenged findings are therefore treated as verities. Although Sarausad attaches selected portions of the Certified Appeal Board Record (CABR) to her filings on appeal, she has not filed the full CABR. As discussed below, this is fatal to several of her claims on appeal.
Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994); RAP 9.2(b).
Morris v. Woodside, 101 Wn.2d 812, 815, 682 P.2d 905 (1984).
Sarausad first contends the superior court erred in affirming the closure of her claim as of May 11, 2004, without a permanent total disability award.
Alleging that she continues to have major depression and recurring back pain stemming from her industrial injury, Sarausad claims she is unable to obtain employment due to medical restrictions resulting directly from that injury. But she provides only selected portions of the relevant testimony on this point. Absent a complete record, the court's contrary findings are verities, and Sarausad's claim fails.
Furthermore, the Department's undisputed characterization of the testimony below supports the court's findings. According to the Department, Sarausad's attending physician, Dr. Maureen Johnson, vacillated between opinions of no back impairment and some impairment, and ultimately could not offer a definitive conclusion either way. She also testified that as of 2003, Sarausad was capable of working in light or clerical capacity. Psychiatrist Dr. Russell Vandenbelt testified that Sarausad's injury had temporarily aggravated a pre-existing mental condition. He concluded, however, that the mental health aspect of her injury had resolved and that her current psychiatric difficulties were not related to her injury. This evidence supports findings that Sarausad did not need additional treatment or have a permanent disability resulting from her injury Citing RCW 51.48.025, Sarausad also contends she was unable to resume work because of alleged discrimination and retaliation by the University. But she has already litigated discrimination and retaliation claims before the Washington State Personnel Appeals Board and state and federal courts. The adverse decisions in those cases bar further litigation of her claims under the doctrines of res judicata and/or collateral estoppel. In addition, RCW 51.48.025 only contemplates a judicial remedy for retaliation. Therefore, the Board lacked authority to entertain Sarausad's claim under that statute.
The history of that litigation is summarized in an unpublished decision from this court in 1998:
[I]n June 1993, the University terminated Sarausad's employment for insubordination, poor performance, and unsatisfactory attendance. Sarausad appealed to the Washington State Personnel Appeals Board (PAB). . . . The hearings examiner concluded Sarausad had not established that she was justified in refusing to complete certain work assignments or suffered from a disability that prevented her from completing them. Sarausad filed exceptions to the hearings examiner's decision, but the PAB affirmed. In February 1995, Thurston County Superior Court affirmed the PAB's decision and dismissed Sarausad's appeal.
Before the hearings examiner had entered her decision in Sarausad's appeal of her termination, Sarausad filed a complaint for discrimination and retaliation in federal district court. Sarausad asserted that her cause of action was based on the University's termination of her employment, failure to promote her, and "continuous harassment and retaliation reaction in my place of work with the pure intent to damage plaintiff both physically and financially." She claimed she was discriminated against based on her race, sex, national origin, and age. The federal district court held that Sarausad's claims were barred by the doctrines of res judicata and collateral estoppel and granted summary judgment in favor of the University. Prior to being terminated from her job, plaintiff filed a lawsuit in King County Superior Court in 1990 concerning her claims of employment discrimination and harassment which resulted in a verdict for the defendant. The Washington Court of Appeals dismissed plaintiff's appeal and the Washington Supreme Court denied review.
After being terminated from her employment in 1993, plaintiff filed an appeal with the Higher Education Personnel Board alleging that her discharge was retaliatory, discriminatory and without just cause. After a four day hearing at which plaintiff was represented by counsel, the hearing examiner recommended that her appeal be denied. That recommendation was adopted by the Personnel Appeals Board. A judgment affirming that decision and dismissing plaintiff's appeal was entered in Thurston County Superior Court on February 27, 1995.
Sarausad v. University of Wash., noted at 92 Wn. App. 1051 (1998), rev. den., 137 Wn.2d 1034, 980 P.2d 1034 (1999).
Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 429 P.2d 207 (1967).
See Wilmot v. Kaiser Aluminum, 118 Wn.2d 46, 65, 821 P.2d 18 (1991).
Next, Sarausad contends the superior court erred in denying her request for time loss benefits for the period from August 27, 2003 through May 11, 2004. Again, she fails to provide an adequate record to review this contention. It appears, in any event, that she failed to carry her burden below of showing that she was totally disabled and unable to perform any form of gainful employment during that period. According to the Department, the only medical evidence on this point established that she was able to perform clerical work as of 2003.
Herr v. Dep't of Labor Indus., 74 Wn. App. 632, 635, 875 P.2d 11 (1994) (worker seeking compensation must prove that he or she was temporarily and totally disabled during the period for which the worker is seeking benefits).
Sarausad argues in the alternative that time loss compensation for this period was required under RCW 51.32.090(4). That statute provides in part:
[T]emporary total disability payments shall continue until the worker is released by his or her physicians for the work, and begins the work with the employer of injury. If the work thereafter comes to an end before the worker's recovery is sufficient in the judgment of his or her physician . . . to permit him or her to return to his or her usual job, or to perform other available work offered by the employer of injury, the worker's temporary total disability payments shall be resumed.
Sarausad contends "she was never given an accommodation for job employment . . . from the employer-of-injury" and therefore the Department should not have denied her time loss benefits for the period in question. Assuming without deciding that RCW 51.32.090(4) even applies here, it affords Sarausad no relief because, as noted above, her employment came to an end as a result of her own misconduct.
See O'Keefe v. Dep't of Labor and Indus., 126 Wn. App. 760, 109 P.3d 484 (2005) (statute affords no relief to worker fired for misconduct).
Citing Cockle v. Department of Labor and Industries, and RCW 51.08.178(1), Sarausad contends the court erred in failing to adjust her time loss benefits to reflect the value of health care benefits she was receiving at the time of her injury. Although she acknowledges that a Cockle adjustment cannot be made to a wage calculation that has become final, and though she concedes that her August 6, 1998 wage order was in fact final, she contends subsequent "wage orders" were appealed and therefore are not final. But the August 6, 1998 order is the only order that calculated her wages at the time of her injury. That determination has res judicata effect in all subsequent proceedings relating to benefits for that injury. Sarausad's argument is thus an untimely challenge to the Department's final order determining her wages and compensation rate at the time of her injury. The Board and the superior court properly rejected it.
142 Wn.2d 801, 16 P.2d 583 (2001).
Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 537, 886 P.2d 189 (1994).
Sarausad next contends the Board and the superior court erred in failing to award her interest on time loss compensation from June 16, 1992 to December 31, 1997, and from June 25, 1999 to the date of the present action. The Board concluded, and the Department concedes, that Sarausad was entitled to interest on the additional benefits ordered by the superior court in April 2002.
The Board also concluded, however, that it lacked authority to amend the 2002 order, which was adjudicated under a different cause number, and that Sarausad's only recourse was to request the court that issued the 2002 order to award interest. The superior court agreed, noting that it lacked authority to modify orders, including the April 2002 order, that were not currently on appeal.
Sarausad contends the decisions below overlook contrary language in a June 2002 order addressing the order at issue here. The June order stated that the April 2002 order was "complete and sufficiently declares the legal statutes of the parties and their corresponding rights and obligations." Seizing on the word "statutes," Sarausad contends the June order invokes and enforces the provisions of all applicable statutes, including the interest statute. But the word "statutes" is obviously a clerical error; the court plainly meant to use the word "status." Sarausad fails to demonstrate any error in the ruling regarding interest on the 2002 award.
Sarausad also claims the court erred in affirming the Board's calculation of her time loss compensation rate. Specifically, she contends the Board misapplied statutory reductions when her children turned eighteen. RCW 51.32.025 provides that payments to an injured worker "on account of" a child "shall terminate" once the child reaches the age of eighteen unless the child is a dependent invalid or in school full time. The parties agree that the reduction is two percent per child, but disagree on how to deduct that percentage. The Board described the parties' positions as follows:
Assume monthly wages of $1,000 and a worker who, like Ms. Sarausad, was married with three children at the time of her injury. RCW 51.32.060(1)(d) states that 71 percent is to be multiplied by the wages to determine the worker's monthly entitlement. $1,000 multiplied by 71 percent (0.71) equals a monthly time loss compensation rate of $710. When the oldest child reaches the age of majority, the multiplier is reduced to 69 percent, as stated by RCW 51.32.060(1)(c), and the rate is recalculated by multiplying that percentage of the monthly wage. [According to the Department,] [t]he reduced monthly time loss compensation entitlement would be $690. Under Ms. Sarausad's method of computation, when the first child reaches the age of majority the $710 time loss compensation entitlement is multiplied by 2 percent and then the result is subtracted from the previous time loss compensation amount to reach the new time loss compensation rate. . . . Using Ms. Sarausad's formula, the resulting monthly time loss compensation rate would be $695.80 or $5.80 per month greater than what is arrived at using the Department's method.
The Board and the superior court ruled that the Department's calculation is consistent with the statutes, but Sarausad's is not. We agree.
Under Sarausad's formula, the time loss benefits for a worker whose status changed from three dependents to two during the pendency of her claim would be greater than the benefits for a worker who had two dependent children at the time of injury. The Legislature could not have intended this result. We will not interpret statutes in a manner that leads to absurd or strained consequences.
State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987).
Finally, Sarausad argues that the court erred in failing to address a series of administrative decisions concerning benefits for the period of March 18, 2003 through August 19, 2003. The Board noted that, in a separate proceeding, an industrial appeals judge had dismissed her appeals from these decisions as untimely. The Board adopted the appeals judge's decision in October 2004. Sarausad did not appeal the Board's decision. Accordingly, the dismissals became final and Sarausad is precluded from challenging them here by the doctrine of res judicata.
The decisions at issue are Docket Nos. 03 23189, 03 23193, 03 23194, 03 23195, 03 23196, 03 23197, and 03 33597.
To the extent Sarausad challenges the denial of vocational services, her challenge is foreclosed by a final, unappealed order of the superior court dated January 9, 2006.